B.C. Appeal Court ruling on responsible communication tips balance in favour of free expression: lawyer

In Grant v. Torstar Corp. 2009 SCC 61, the Supreme Court of Canada modified the law of defamation to provide greater protection for communications on matters of public interest. One of the factors relates to the concept of “reportage,” which are statements attributed to someone other than their publisher. The ruling stated the “repetition rule” (which is that a person who repeats a defamatory statement made by another is just as liable as the maker of the statement)did not apply to reportage on a matter of public interest, provided that four prerequisites are satisfied: namely, the statement is attributed to a person; the report indicates its truth has not been verified; the report sets out both sides fairly;and the context of the statement is provided.

But Justice Tysoe held, even if the reportage exception is made out for some statements in the publication, “it is still necessary to determine whether the publication was responsible because the defence is to be applied to the publication as a whole.”

“[Justice Dardi] applied the Grant responsibility factors to the statement in isolation and the publication the defence of responsible communication was not established,” he wrote. “This approach gave no effect to the reportage exception. This would not have occurred if the judge had properly interpreted [Grant] to mean that it was the publication as a whole that is required to have been responsibly made.”

The court then allowed Canwest’s appeal, and also dismissed a cross appeal by Wilson in which he argued Justice Dardi failed to consider the fact William Lougheed had committed the statutory tort of harassment against Wilson in determining whether the publication of the article was in the public interest. Justice Tysoe was joined by Justices Mary Saunders and Harvey Groberman in his decision, which was released Nov. 27 (Wilson v. Canwest Publishing Inc./Publications Canwest Inc. 2018 BCCA 441).

Daniel W. Burnett of Owen Bird Law Corporation, who represented Canwest and O’Connor, said the case is important in terms of how the responsible communication defence is applied. He noted, while the Supreme Court in the Grant case referred briefly to the need to take an overall approach, this was the first case which grapples in more detail with a situation where a judge says she will deal with one piece of a story differently.

“The whole point of the responsible communication defence is if something is in the public interest and the author exercised due diligence then we will excuse errors,” he said. “So, if a court can carve off the part that’s the error, which almost by definition is going to have some failings that occurred in order to get there, then effectively you’ve punctured the defence. The Court of Appeal corrected that.”

But James Straith, who represented Wilson, said the decision “seems to extend the reportage defence” to the point that he is worried individuals may feel free to publish false items and then hide behind a defence of responsible communication. He said he and Wilson were weighing their options about whether to seek leave to appeal to the Supreme Court.

“The question that was being asked in the Court of Appeal was if you’ve got five chapters in a book and one is completely fictitious, can you even sue on that one chapter anymore?” he said. “Because they can say we got four of the five chapters right, so we win. I just find not just the outcome of this case but the wider implication of this kind of journalism getting the green light to be disturbing.”

Burnett said he didn’t share Straith’s concerns, saying the decision made it quite clear reportage doesn’t stand as a defence unto itself.

“In this case all of the elements set out in the Grant case for reportage were met in terms of the story at issue, but then in addition to that they had to decide that the story was overall handled responsibly,” he said. “Reportage doesn’t mean you can just quote somebody and you’re immune — the quotation must be itself in the public interest and must be reported making it clear it’s unproven and getting the other side of the story. There are some statements that are very much in the public interest whether they are true or not.”

Howard Winkler of Winkler Dispute Resolution noted there has been a trend in recent cases and in litigation such as anti-SLAPP measures to balance interests more towards freedom of expression rather than protection of one’s reputation.

“What was significant about the development of this responsible communication defence was for the first time it allowed a defendant to be wrong, to publish something that was false and still escape liability,” he said. “And what this case perhaps does is that it further tips the balance in favour of the protection of expression by treating all of the charges in the communication as a single publication rather than treating one or more of them as separate charges.”

Winkler said Straith has a point about his concerns surrounding the reportage defence, but added the courts will have to be very sensitive to the consideration of whether something constitutes a single charge or whether it contains separate and distinct charges.

“And if the court properly undertakes that analysis then the media shouldn’t be able to just throw in frivolous and perhaps false allegations into what otherwise would be a matter of public interest it,” he said. “If that happens then hopefully what the court would decide is what they’ve thrown in constitutes a separate charge and treat it separately. In this case the court found this wasn’t the case, but hopefully in the future this decision and its application won’t be abused to permit that kind of situation.”

The B.C. Appeal Court ruling on responsible communication tips balance in favour of free expression: lawyer article was published by The Lawyer’s Daily on December 4, 2018